Ass'n of American Physicians & Surgeons v. Burwell

The Association of American Physicans &
Surgeons, Inc. ("AAPS") and the Alliance for Natural Health-USA
("ANH-USA") have challenged the Patient Protection and Affordable
Care Act ("ObamaCare") as well as other related actions
by the federal government. The case was stayed while the state and
National Federal of Independent Business ("NFIB") lawsuit wound its
way through the Supreme Court and a related case would its way
through the D.C. Circuit. After the Supreme Court decided the
NFIB case, the district court lifted the stay and dismissed the
AAPS/ANH-USA action. The case is currently on appeal in the D.C.
Circuit.

Because their lawsuit raises constitutional
defects with ObamaCare that neither the Supreme Court nor the parties addressed in
the NFIB litigation, AAPS and ANH-USA contend that the NFIB
decision did not resolve their claims:

"Questions which merely lurk in the record,
neither brought to the attention of the court nor ruled upon, are
not to be considered as having been so decided as to constitute
precedents."

Cooper Indus., Inc. v. Aviall Serv., Inc.,
543 U.S. 157, 170 (2004) (quoting Webster v. Fall, 266 U.S.
507, 511 (1925)); Waters v. Churchill, 511 U.S. 661, 678 (1994) (“cases cannot be read
as foreclosing an argument that they never dealt with”). The additional
AAPS/ANH-USA arguments relate to the constititional requirements for
taxation (e.g., the Fifth Amendment, the Orgination Clause, and the
requirement for national uniformity in excise taxation), now that
the Supreme Court has held that Congress lacks authority to impose
ObamaCare under any enumerated power other than the power to tax.